International Day of Biological Diversity: The Access and Benefit Sharing Regime and its Challenges

International Day of Biological Diversity

The International Day of Biological Diversity was initially held on December 29th, 1993, in Rio de Janeiro, Brazil. Ever since then, Biodiversity Day is annually commemorated on May 22nd. This date was subsequently chosen since it coincided with the adoption of the final Convention on Biological Diversity (CBD). One of the main purposes of commemorating this day is to increase awareness and to educate the public on the importance of biodiversity—the variety of life on Earth—as it plays a crucial role in the sustainability of ecosystems. Many are unaware of the direct threats facing biodiversity. On that account, a day that is designated to commemorate the realms of biodiversity equally serves to educate the public and lawmakers on the importance of safeguarding it.

What is Biodiversity

Biological Diversity or Biodiversity is a term often used in the field of biology. Article 2 of the CBD defines biodiversity as the “variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” It also contributes as a progressive form of development that parallels human evolution. This ambitious role is of a greater significance amidst the backdrop of a stimulated globalisation, where the intertwining of economic and other factors ultimately conceive repercussions that challenge humanity’s survival. Our biodiversity is being threatened, and this is a compelling matter that must be addressed by law. In a concise overview, economic and global proliferation highlights the urgency for an international standard on biological diversity. All of these provisions are designed to reassure the protection, safeguarding as well as the rehabilitation of biological life, and not to inadvertently cause further harm. Consequently, the international community took the initiative to adopt the CBD with the objective to counteract the threats faced by Earth’s biodiversity.

Indigenous People, and Local Communities

Local communities refer to groups of individuals who share certain social, economic, or cultural ties. As time passes, these communities have become more fluid and flexible with people repatriating to their respective places and no longer being tightly bound with their cyclical traditional practices; this emphasises their adaptability to new conditions. Conversely, indigenous peoples’ practices are deeply rooted in their cyclical traditions, which in turn are often contingent on biological diversity. This underscores the urgency for an international standard in regards to biodiversity, with the objective to conserve these indigenous peoples’ cultural traditions. As of now, there is no uniform definition of “indigenous.” However, the United Nations (UN) has established certain criteria to clarify the usage of the term. In principle, indigenous people are those who are recognised by their distinct communities. These communities are distinguished by their long historical presence in pre-colonial or pre-settler societies. They maintain strong connections to their territories and natural resources, exhibit distinct social, economic, and political systems, as well as preserve unique languages, cultures, and beliefs. Additionally, they often constitute non-dominant groups within society who are committed to protecting their ancestral environments and systems.

An example of an indigenous community is the Maasai people. As a community distinct from most modern societies, their social structure is based on age and cattle ownership, in which the latter signifies a symbol of wealth. For generations, the Maasai people relied on cattle herding to maintain their strong attachments to specific grazing land and water sources crucial to their cultural practices and survival. However, the Tanzanian authorities restricted livestock grazing in areas of Maasai settlements, forcibly evicting them in the process and prompting them to leave their cattle at risk of death. 

The relationship between indigenous people and biodiversity is intertwined. Thus, biodiversity and indigenous people are interdependent and this demonstrates that traditional knowledge plays a crucial role in maintaining biodiversity.

Why Law Enforcement Failed to Solve Slavery Issues

The CBD explicitly acknowledges the critical dependency of indigenous people and local communities on biological diversity; it recognises the communities’ unique role in conserving life on Earth. This recognition is evident in Articles 8(j), 10(c), 17, and 18(4) of the CBD.

• Article 8(j) implies that respecting, preserving, and maintaining the knowledge and practices of indigenous people and local communities are related to biodiversity conservation and sustainable use. As it promotes their wider application with the approval of these communities to encourage equitable benefit-sharing from their use.
• Article 10(c) requires states to protect and promote traditional cultural practices in using biological resources, ensuring these practices align with conservation and sustainable use requirements.
• Article 17(1) requires states to facilitate the exchange of information regarding the conservation of biological diversity as well as its sustainable use, while taking the needs of developing countries into consideration.
• Article 17(2) regulates the ambit of the type of information to be exchanged between state parties. 
• Article 18(4) compels states to promote cooperation in the development and use of technologies, including technologies that are indigenous and traditional in nature, with the purpose of achieving the Convention’s objectives. 

Therefore, it is imperative for all states that have ratified the CBD to enforce its provisions. Moreover, the human rights perspective within the CBD is delicately intertwined with the rights of indigenous people, ensuring that indigenous peoples’ human rights are universally upheld. Indigenous people also have an inherent right to human rights, and the CBD explicitly acknowledges these rights within Articles 8(j), 10(c), 17(1), 17(2), and 18(4). These provisions underscore the compelling importance of respecting indigenous peoples’ knowledge and practices in conserving biodiversity, promoting equitable benefit sharing and access, and fostering global recognition of indigenous peoples’ rights.

Traditional Knowledge and Genetic Resources

Based on the CBD, Traditional Knowledge (TK) is a necessity in safeguarding biodiversity. However, TK remains vague due to the lack of a definite international consensus, yet the World Intellectual Property Organization (WIPO) endeavours on defining TK. Meanwhile, TK is better recognised as a collectively owned heritage rather than an individually owned right. This concept is deeply connected to indigenous culture, identity, spirituality, livelihood, location, and the natural conditions in which the people live. Thus, TK includes every knowledge and practice that are closely tied to the preservation of biodiversity and the culture itself. TK is categorised into two types: (a) traditional cultural expressions and (b) genetic resources (GR). These categorisations are important for policy development, as each category raises distinct issues that require specific solutions.

The world relies heavily on GR, as the global economy depends on these biological resources, either directly or indirectly. GR are defined as genetic material with actual or potential value, consisting of the living components of plant, animal, or microorganism species, which contain the functional units of heredity. The CBD recognises the rights of indigenous people and local communities as the actual custodians of GR and its associated TK. This highlights the close, often inseparable, relationship between indigenous people and local communities and their TK, innovations and practices. GR may be subject to access by other entities for sampling and/or research, but the CBD requires the consent of the state in possession of such GR prior to conducting such an activity. Hence, one of the main objectives of the CBS is to ensure fair and equitable sharing of the benefits arising from the access to and usage of the GR as well as the associated TK.

Biopiracy as a Challenge to the Conservation and Sustainable Use of Biodiversity

While biopiracy in itself is not a legal term, it may connote the unlawful commercial or non-commercial use of the Intellectual Property system to acquire rights over inventions that are sourced from GR and its associated TK. Biopiracy is corrupt in nature since it does not bestow the indigenous people, local communities, or the state with the appropriate benefit-sharing mechanism (e.g. compensation). One example of biopiracy is the Neem Tree Controversy. The Neem Tree has been closely related to Indian culture and long known for its health benefits. The Indian farmers had been using their knowledge cultivating the Tree to extract ‘azadirachtin’. That was until American researchers discovered the Tree, found a better way to extract this particular substance, and patented the method without proclaiming the Indians’ TK, let alone sharing the benefits of this commercialisation with them.

One of the CBD’s subsidiary instruments, the Nagoya Protocol, established the Access and Benefit Sharing (ABS) regime to implement the CBD’s objective in promoting fair and equitable sharing out of the usage of GR. Alas, biopiracy appears to be one of the challenges faced by the ABS regime under the CBD. Consequently, many parties to the Nagoya Protocol, particularly third-world countries, expect it to tackle the issue of misappropriation of their GR. For instance, following Indonesia’s ratification of the Nagoya Protocol, Indonesian Vice President Boediono stated that “With the law, Indonesia will have a firm legal basis to protect and preserve its genetic resources and traditional knowledge related to genetic resources.” 

Indonesia’s Biopiracy Issues 

Indonesia is one of the world`s GR-rich countries since it embraces a prosperous biodiversity and is wealthy of TK. However, these resources have been exploited by other entities and exposed to global commercialisation; in other words, Indonesia’s biodiversity and TK are casualties of biopiracy. Despite its abundant resources, local communities in Indonesia have not benefited from conserving their biodiversity due to the lack of specific legislation for its protection and management.

Consequently, Indonesia’s promulgation of Government Regulation No. 41 of 2006 and Law No. 11 of 2019 were significant steps towards safeguarding biodiversity. The provisions contained in these laws mandate that foreign researchers must have a licence and are required to utilise Material Transfer Agreements (MTAs) when procuring samples in Indonesia. However, the primary focus of these provisions is to control access rather than to ensure benefit-sharing; in effect, local communities find the use of their biodiversity to be meritless.

Indonesia thus still lacks a well-established system for recognising and protecting the role of local communities and their associated TK, which hinders the prescription of benefit-sharing agreements. There is an urgent need for the government to create such agreements when granting access for research or commercial use of biodiversity.

Conclusion

It is undisputed that biodiversity is integral to human survival and its research contributes to many technological developments. The growth of trade, commercialisation, and lack of government supervision over biodiversity will undoubtedly lead to the demise of many biological life forms, destroying its very ecosystem in the process. To prevent further damage, the international community adopted the CBD. The CBD recognises the critical role of indigenous people and local communities in preserving and sustaining biological diversity. This is done by governing that indigenous people and local communities are the custodians of GR and its TK. As a form of legal protection, the CBD provides a mechanism which entails that access towards those GR requires prior consent from the state. This mechanism serves to balance the prevention of biopiracy while still allowing some degree of access by other entities in order to support scientific development. This is also evident in the ABS mechanism provided by the Nagoya Protocol. In practice, the implementation of ABS remains one-sided, with no effective emphasis on the benefits of sharing the GR and its associated TK. This can be seen in the Indonesian Government Regulation No. 41 of 2006 and Law No. 11 of 2019, which primarily focus on controlling access.